For a solicitor running an indictable matter, whether to seek a judge-alone trial is one of the earliest and most consequential strategic decisions in the case. It shapes how the facts will be found, how prejudice is managed, and whether the reasons for the verdict will be open to scrutiny on appeal. This article sets out the section 132 framework in NSW, the principles the Court of Criminal Appeal has laid down for the interests-of-justice discretion, and the tactical considerations that bear on advising a client one way or the other.

This is a practitioner overview of NSW law as at 2026. It is general information, not legal advice, and any application turns on the evidence and issues in the particular matter.

Key points

  • Trial by jury is the statutory default for indictable matters in the District Court and Supreme Court (section 131). For a State offence it is not a constitutional guarantee.
  • Either party may apply for a judge-alone trial under section 132. The accused holds a veto, and the court may order one over the prosecutor’s objection where it is in the interests of justice.
  • The court may refuse where the case turns on objective community standards, such as reasonableness or dangerousness (section 132(5)). Applications are due at least 28 days before trial (section 132A).
  • The leading authority is R v Belghar [2012] NSWCCA 86; see Alameddine v R [2022] NSWCCA 219 for the current articulation of the principles.
  • The tactical question is not only whether an application can succeed, but whether trial by judge alone genuinely improves the client’s forensic position.

The default: trial by jury

For serious indictable offences tried in the District Court or Supreme Court, section 131 of the Criminal Procedure Act 1986 provides that the trial is to be heard by a jury, “except as otherwise provided”. The Court of Criminal Appeal has held that section 131 does not create a presumption that the trial should be by jury, nor cast a burden on an accused to displace one: R v Belghar [2012] NSWCCA 86. The accused bears an evidentiary onus on a section 132 application, but does not have to overcome a statutory assumption in favour of a jury.

One point is worth correcting, because it surfaces often. The right to trial by jury for a NSW charge is not guaranteed by the Constitution. Section 80 of the Constitution requires a jury only for Commonwealth offences tried on indictment, and it does not apply to State offences. For a NSW charge, the jury trial is the statutory default under the Criminal Procedure Act, which is also the source of the power to order trial by judge alone.

What a judge-alone trial is

In a judge-alone trial, a single judge determines both the facts and the law and delivers a reasoned verdict, without a jury. This is a “trial by judge order” under section 132. Section 133 empowers the judge to make the findings of fact a jury would otherwise make, and the judgment records the reasons.

Judge-alone trials arise in the District Court and Supreme Court. They have no application in the Local Court, where a magistrate sits without a jury in any event.

When the order can be made

Either the accused or the prosecutor may apply for a trial by judge order under section 132. The outcome depends on consent:

  • Both parties consent: the court must make the order.
  • The accused does not consent: the court must not make the order. In effect, the accused holds a veto.
  • The prosecutor does not consent: the court may still make the order if satisfied it is in the interests of justice.

Two statutory limits qualify the discretion. Under section 132(5), the court may refuse the order where the trial will involve a factual issue requiring the application of objective community standards, such as reasonableness, negligence, indecency, obscenity or dangerousness. Under section 132(7), the court may make the order despite the other provisions where there is a substantial risk of an offence against jurors, witnesses or judges that cannot be mitigated. Separately, under section 132(6), the court must be satisfied that the accused has sought and received advice from an Australian legal practitioner about the effect of such an order, which places a practical onus on the defence to have advised the client on the record.

Timing is governed by section 132A: the application must be made at least 28 days before the trial date, except with the leave of the court. In a joint trial, all accused must apply, and each application must cover all offences being tried.

The interests-of-justice discretion

Where the prosecution does not consent, the interests of justice govern the application. In R v Belghar [2012] NSWCCA 86, McClellan CJ at CL undertook an exhaustive review of the authorities and distilled the principles that continue to frame these applications. Two are worth drawing out when advising a client:

  • Efficiency in the running of the trial is not part of the interests-of-justice assessment. A judge-alone trial cannot be justified simply because it may be quicker or more convenient.
  • Where the matter turns on a complex technical issue, the interests of justice may be served by the judge’s obligation to give reasons, in contrast to the inscrutability of a jury verdict.

For the current articulation of the principles under sections 131 to 132A, the Court of Criminal Appeal’s discussion in Alameddine v R [2022] NSWCCA 219 is the natural starting point, and is cited as such in the Judicial Commission’s Criminal Trial Courts Bench Book.

Practice insight: Peter Godkin

The first question I raise with an instructing solicitor is rarely whether a judge-alone application could succeed. It is whether trial by judge alone genuinely improves the client’s forensic position, or simply feels safer. Those are different questions. A reasoned judgment cuts both ways. It can shield a client from prejudice, but it also removes the possibility of the unreasoned acquittal a jury can return. Where a defence depends on a jury’s sense of fairness rather than a clean legal argument, that is usually a signal to keep the jury. The analysis is specific to the evidence, and it is worth having early, well before the 28-day deadline forces the decision.

Tactical considerations: judge alone versus jury

Judge-alone trials remain a minority of higher-court trials in NSW, though the share has grown, from 6% of trials in 1999 to 18% in 2019 (BOCSAR). They are most often sought in matters with prejudicial elements or complex evidence, which mirrors the considerations below. The decision is fact-specific, and the advantages run in both directions. The table below summarises the considerations that most often bear on the advice.

Consideration Judge alone Jury
Who finds the facts A single judge Twelve jurors from the community
Reasons for the verdict Published and reviewable Not given
Entrenched pre-trial publicity Judge trained to set it aside Risk of pre-formed views
Extraneous or online material Risk removed Real risk of jurors accessing it
Objective community standards May weigh against the order (s 132(5)) Well suited to apply them
Complex or technical evidence Judge may manage the detail better Harder to control
Procedural risk (juror discharge, mistrial) Reduced Higher
Sympathy or human response to the facts Limited May assist the defence

In practice, the two considerations that most often support an application are entrenched pre-trial publicity, where a reasoned decision on the evidence protects the accused, and complex or technical issues, where the obligation to give reasons is an advantage. Against that, where the defence is likely to resonate with community values, or the case turns on reasonableness or everyday judgment, a jury may be the stronger forum, and section 132(5) may see the application refused in any event.

Framing and preserving the point

Because the interests-of-justice assessment is evaluative and fact-specific, the way an application is framed and argued matters, as does the record it creates for any appeal. Running these applications, and the trials that follow, is the work of experienced trial counsel who can identify early whether a matter is a genuine candidate for judge-alone and build the application accordingly.

Peter Godkin is a criminal barrister at 8 Windeyer Chambers, called to the NSW Bar in 2014, with District Court and Supreme Court trial experience. He advises and appears in criminal trials in the District Court and Supreme Court, and accepts briefs from solicitors at all stages of proceedings, including advice before election and on contested judge-alone applications.

To brief Peter, or to discuss whether a judge-alone application suits a client’s case, contact chambers on 02 9235 3033.

Frequently asked questions

What is a judge-alone trial in NSW? It is a trial in the District Court or Supreme Court where a single judge decides both the facts and the law and delivers a reasoned verdict, without a jury. It is made by a “trial by judge order” under section 132 of the Criminal Procedure Act 1986.

Can an accused insist on a judge-alone trial? No. An accused can apply, and the court must make the order if the prosecutor also consents. If the prosecutor opposes it, the court may still order it where that is in the interests of justice. Because the accused cannot be tried by judge alone without consenting, the accused holds a veto over the mode of trial.

Does the prosecution have to consent? No. Even where the prosecutor opposes the application, the court may order a judge-alone trial if satisfied that doing so is in the interests of justice, under section 132(4).

What does “interests of justice” mean in this context? It calls for a broad, evaluative assessment. In R v Belghar [2012] NSWCCA 86 the Court of Criminal Appeal held that efficiency is not a relevant consideration, and that the judge’s obligation to give reasons may favour a judge-alone trial where the issues are complex or technical.

When will a court refuse a judge-alone trial? Among other reasons, where the trial will involve a factual issue requiring the application of objective community standards, such as reasonableness, negligence, indecency, obscenity or dangerousness, under section 132(5).

When must the application be made? At least 28 days before the trial date, except with the leave of the court, under section 132A. In a joint trial, all accused must apply, and each application must cover all offences being tried.

When should a solicitor consider briefing counsel on a judge-alone application? Early, and ideally before the client elects. Because the application is due at least 28 days before trial (section 132A) and turns on an evaluative interests-of-justice assessment, there is value in counsel assessing the forensic merits well before the deadline. Briefing before election keeps the full range of options open.

This article is a general overview of NSW law as at 2026 and is not legal advice. The application of sections 131 to 133 is fact-sensitive and continues to be developed by the courts. Any application turns on the evidence and issues in the particular matter.

Further reading (authoritative sources):

  • Criminal Procedure Act 1986 (NSW), s 132 (trial by judge order), and ss 131–133 generally, on AustLII: https://www.austlii.edu.au/au/legis/nsw/consol_act/cpa1986188/s132.html
  • NSW Bureau of Crime Statistics and Research, “The effect of judge-alone trials on criminal justice outcomes” (Crime and Justice Bulletin 264, 2024): https://bocsar.nsw.gov.au/research-evaluations/2024/CJB264-Summary-Effect-of-judge-alone-trials1.html
  • Judicial Commission of NSW, Criminal Trial Courts Bench Book, “Judge-alone trials” (collecting and discussing R v Belghar [2012] NSWCCA 86 and Alameddine v R [2022] NSWCCA 219): https://www.judcom.nsw.gov.au/publications/benchbks/criminal/judge_alone_trials.html